State v. Kelly

Pursuant to ORAP 5.45, Appellate courts have broad discretion to determine the prejudice of a plain error committed in the circuit court. Furthermore, sentencing guidelines may be discretionary with regards to unranked offenses. Finally, unspecified pleadings which are subsequently substantiated by discovery are not in error.

Defendant appealed a conviction for racketeering under an indictment alleging theft and fraud related offenses. Defendant ran a home-remodeling corporation, and through it induced homeowners to sign documents that were fraudulently represented to be credit-financing applications and remodeling-completion certificates. As a result, both homeowners, and the bank where he submitted the documents suffered financial losses. The Court held there was no error in allowing the state to refer to unnamed "others" in the “enterprise” element of its pleadings, because the "others" were subsequently identified in discovery; and, there was no error in sentencing Defendant as a "level-9" offender on the crime-seriousness sentencing guidelines grid, despite racketeering being an unranked offense, because trial courts have discretion to assign a racketeering conviction to a level higher than that of the underlying crime. The Court further held the trial court exercised its discretion properly by not correcting the error of allowing an anonymous jury because circumstances did not manifest an unreasonable bias against defendant, despite that anonymous juries are generally used for violent criminals; and, the trial court properly exercised its discretion by not correcting another plain error because no prejudice was found to be the result of improper jury instruction regarding the fraud element of racketeering. Affirmed.